Citation Nr: 0101511
Decision Date: 01/19/01 Archive Date: 01/24/01
DOCKET NO. 99-22 770 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for a back disorder as
secondary to right ankle fusion.
3. Entitlement to service connection for a disorder of the
knees as secondary to right ankle fusion.
4. Entitlement to an increased evaluation for right ankle
fusion, with traumatic arthritis, currently evaluated as
40 percent disabling.
5. Entitlement to a total disability evaluation based on
individual unemployability due to service connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: John S. Berry, Attorney
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from April 1966 to April
1968.
This appeal to the Board of Veterans' Appeals (Board) arises
from rating decisions in January 1999 and April 1999 by the
Lincoln, Nebraska, Regional Office (RO) of the Department of
Veterans Affairs (VA).
The issues of entitlement to service connection for tinnitus,
a back disorder, and a disorder of the knees, and to TDIU
will be addressed in the remand portion of this decision.
FINDINGS OF FACT
1. The veteran's right ankle is ankylosed.
2. By regulation, the combined schedular evaluation for
disabilities below the knee may not exceed 40 percent.
3. The veteran's right ankle disability does not present an
exceptional or unusual disability picture.
CONCLUSION OF LAW
The schedular and extraschedular criteria for an evaluation
in excess of 40 percent for a right ankle fusion, with
traumatic arthritis, are not met. 38 U.S.C.A. §§ 1155, 5107
(West 1991 & Supp. 2000); 38 C.F.R. § 4.71a, Diagnostic Codes
5270, 5271 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that, on November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
which applies to all pending claims for VA benefits and which
provides that VA shall make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate the
claimant's claim for a benefit under a law administered by
VA. In the instant case, with regard to the claim of
entitlement to an increased evaluation for right ankle
fusion, with traumatic arthritis, the Board finds that the RO
complied with the requirements of the statute. All relevant
evidence identified by the veteran was obtained and
considered. In addition, the veteran was afforded a VA
examination to assist in rating his service connected right
ankle disability. With regard to the adequacy of the
examination, the Board notes that the report of the
examination reflects that the VA examiner recorded the past
medical history, noted the veteran's current complaints,
conducted a physical examination, and rendered appropriate
diagnoses. For these reasons, the Board finds that the
examination was adequate for rating purposes. The Board
concludes that all reasonable efforts were made by VA to
obtain evidence necessary to substantiate the veteran's claim
for an increased rating for right ankle fusion and the Board
will proceed to consider that claim on the merits. See
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 3(a), 114 Stat. 2096, ___ (2000) (to be codified at
38 U.S.C. § 5103A).
Disability evaluations are determined by application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities
and the criteria for specific ratings.
38 C.F.R. § 4.71a, Diagnostic Code 5271 provides that marked
limitation of an ankle warrants a 20 percent evaluation.
38 C.F.R. § 4.71a, Diagnostic Code 5270 provides a maximum
schedular evaluation of 40 percent for ankylosis of an ankle.
The rating schedule does not provide an evaluation in excess
of 40 percent for an ankle disability. A regulation provides
that the combined schedular evaluations for disabilities
below the knee shall not exceed 40 percent. See 38 C.F.R.
§ 4.68.
The veteran's service medical records disclose that, in
September 1967, in Vietnam, he fell off a bridge and
sustained a simple fracture of the cuboid and navicular bones
of the right foot and dislocation of Chopart's joint of the
right foot. A rating decision in October 1968 granted
service connection for traumatic arthritis of the
talonavicular joint of the right foot, residual of a
fracture.
VA X-rays of the right foot in July 1986 showed diffuse
degenerative changes throughout the tarsal bones.
In February 1990, at a VA Medical Center, the veteran
underwent a right ankle fusion.
In a decision of June 29, 1992, the Board granted an
evaluation of 40 percent for the veteran's right ankle
disability.
VA X-rays of the right ankle in January 2000 showed: fusion
of the tibiotalar joint; advanced degenerative changes
involving the subtalar and talonavicular joints; and an
ununited fracture of the distal fibula.
At a VA joints examination in January 2000, pronounced
deformity of the right ankle and the dorsum of the right foot
were noted; there were surgical scars on the ankle and the
dorsum of the foot; the right ankle was fixed, with no
dorsiflexion or plantar flexion; he could wiggle his toes;
there was a good dorsalis pedal pulse, and no sensory loss of
the right foot. The diagnosis was fusion of the right ankle,
status post operation of the right ankle, and degenerative
joint disease of the right foot.
The veteran is entitled to the maximum schedular evaluation
of 40 percent for ankylosis of the right ankle, under
Diagnostic Code 5270, which is the currently assigned
evaluation. As noted above, a schedular evaluation in excess
of 40 percent is not available, under the rating schedule.
Entitlement to an increased schedular evaluation for a right
ankle disability is thus not established. 38 U.S.C.A.
§ 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5271.
In reaching this decision, the Board has considered the
potential application of various provisions of Title 38 of
the Code of Federal Regulations (2000) whether or not they
were raised by the veteran, as required by the holding of the
United States Court of Veterans Appeals in Schafrath v.
Derwinski, 1 Vet. App. 589, 593 (1991), including the
provisions of 38 C.F.R. § 3.321(b)(1). However, the Board
finds that in this case that the disability picture presented
by the veteran's right ankle disorder is not so exceptional
or unusual as to render impractical the application of
regular schedular standards, and thus a referral for an
evaluation on an extraschedular basis is not warranted. The
Board is therefore not required to remand this matter to the
RO for the procedural actions outlined in 38 C.F.R.
§ 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
As the preponderance of the evidence is against the veteran's
claim, the benefit of the doubt doctrine does not apply.
38 U.S.C.A. § 5107(b) (West 1991).
ORDER
An increased evaluation for right ankle fusion, with
traumatic arthritis, is denied.
REMAND
Disability which is proximately due to or the result of a
service-connected disease or injury shall be service-
connected. Secondary service-connection may also be
granted for the degree to which a non-service-connected
disorder is aggravated by a service-connected disorder.
38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App.
439 (1995).
With regard to the veteran's secondary service connection
claims, the Board notes that the RO did not consider the
claims on the basis of aggravation.
At a VA general medical examination in October 1998,
diagnoses included degenerative joint disease of the
right knee.
With regard the veteran's claim for service connection
for tinnitus, the Board notes that, at a VA audiological
examination in March 1999, the veteran gave a history of
inservice exposure to combat noise and postservice
exposure to air hammer noise while working on a bridge
crew for about 5 years. Audiological testing revealed
significant bilateral sensorineural hearing loss. The
audiologist forwarded to the RO a questionnaire the
veteran completed concerning tinnitus, in which he said
that: he had had tinnitus since his period of active
service; his tinnitus became worse in 1989; and he had
tinnitus off and on every day.
The Veterans Claims Assistance Act of 2000 (VCAA)
requires VA to assist the veteran in developing his claim
unless there is no reasonable possibility that assistance
will aid in substantiating the claim. With regard to the
veteran's service connection claims, the Board finds that
the VCAA requires VA to permit the veteran to be examined
by physicians in order to determine whether he currently
suffers from tinnitus and back and knee disorders and for
VA to obtain medical opinions as the relationship, if
any, of tinnitus to active service and of back and knee
disorder to the veteran's service connected right ankle
disorder, and this case will be remanded to the RO for
that purpose.
Accordingly, this case is REMANDED to the RO for the
following:
The RO should arrange for the veteran to
be examined by specialists in
otolaryngology and orthopedics. It is
imperative that the examiners review a
copy of this REMAND and the veteran's
medical records in the claims file.
The otolaryngologist should offer an
opinion on the question of whether it is
at least as likely as not (a 50 percent
or more likelihood) that tinnitus, if
found, had its onset during the veteran's
period of active service from April 1966
to April 1968.
The orthopedist should determine whether
the veteran has a disorder of the right
knee and/or a disorder of the left knee.
He or she should offer an opinion on the
question of whether it is at least as
likely as not (a 50 percent or more
likelihood) that disorders of the knees,
if found, were either caused by or
aggravated by the veteran's right ankle
disability (right ankle fusion with
traumatic arthritis). If the orthopedic
examiner finds that a disorder of the
right ankle did not cause but did
aggravate a disorder of either knee, he
or she should comment on the extent of
the aggravation.
Following completion of these actions, the RO should review
the evidence and determine whether the veteran's claim of
entitlement to service connection for tinnitus, his claims of
entitlement to secondary service connection for disorders of
the back and knees, and his claim of entitlement to TDIU may
now be granted. If the decision remains adverse to the
veteran on any issue, he and his representative should be
provided with an appropriate Supplemental Statement of the
Case and an opportunity to respond thereto. The case should
then be returned to the Board for further appellate
consideration, if otherwise in order. The purposes of this
REMAND are to assist the veteran and to obtain clarifying
medical information. By this REMAND, the Board intimates no
opinion as to the ultimate disposition of the appeal. No
action is required of the veteran until he receives further
notice. The appellant has the right to submit additional
evidence and argument on the matters which the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999).
BRUCE KANNEE
Member, Board of Veterans' Appeals